The trials and tribulations of a judicial reformist, her efforts to make change and bring transparency into the court system, and the system's response. Attorney Clark also comments on judicial reform issues around the USA, and lawyer rights. Go to About to report judicial misconduct or leave a note for Attorney Clark.

Monthly Archives: October 2012

Most people I talk to think that’s outrageous conduct by a public-paid official.

Let’s consider.

Judges sit in ‘judgment’ of private people. Judges can and do demand from the bench that private people answer their questions, and answer them truthfully (upon penalty of sanctions). What would you think about our court system if you discovered that judges who perform that function have intentionally concocted a story, then fed it to you from the bench?

I supposed judges justify misrepresentation in various ways. Maybe they think the ‘image’ of the courts will be enhanced if they shade the truth. Maybe they think they are entitled to prevaricate to protect themselves (or protect other public employees they work with). Or perhaps they don’t consider dishonesty such a big deal. Maybe they started with little “white” lies. Then they moved on to the stronger stuff. Maybe they were used to deceiving people before they took the bench.

However they got there, it is reality that some judges are not sincere on the job. (Of course, many judges work hard to be upright.)

It has been my unfortunate experience to encounter a number of judges who have outright fabricated or intentionally misled customers of the court.

I’ve encountered it in verbal comments from the bench.

I’ve encountered it in court orders.

I’ve encountered it in judicial letters and emails.

And I’ve been able to prove it.

So what do we do about it?

Can we demand that judges tell the truth? I think we must.

Note that judges have a duty to report each other if there is substantial evidence that another judge is not telling the truth. (See verbiage at Minnesota Judicial Canon 2.15; link to those rules here).

Of course there are shades of gray. Some falsifications are more harmful than others.

And sometimes people make a mistake.

Yet consider that the justice system sells truth. Trials, hearings, much of what the courts do, is grounded in a search for truth. In this system, more than any other, we must demand it.

I remember when I got sober over 20 years ago, I had to give a lot of time and attention to being honest. I studied on what it means to be honest. It doesn’t happen over night. It’s a process.

We’ve all had our experiences with being less than honest. But if someone is going to accept the title of judge, they should give extra time and attention to this important issue.

What training is given to judges when they take the bench? Are they taught the importance of honesty? Tools for becoming more honest? Ways to monitor their honesty so they don’t cross the line?

I bet many members of the public would rather have their tax dollars go to training, than a lot of the other ‘activity’ in the courts.

In part 2 we’ll explore why honesty is the best “policy” and why we should demand that the courts fire all of their “PR” people.

Here’s an interesting one. In this campaign, both the challenger and the incumbent judge Eugene C. Turner are the subjects of complaints apparently being investigated by Florida’s Judicial Qualifications Committee.

The incumbent judge is accused of retaining a democratic heavy-weight to advise his campaign, supposedly “partisan.”

That seems weak. I don’t know who filed the complaint, but I’m against using the disciplinary process to further a campaign.

The lawyer-challenger.

Turner’s [lawyer] challenger is accused of taking “information out of context” regarding Turner’s participation in the Florida Deferred Retirement Option Program in 2008 by alleging the sitting judge “double dipped.”

“Should we expect more from Judge Turner?” the complaint quoted the advertisement as saying.

(Id.). This is also really weak. I sure hope someone is parsing through First Amendment law on this one. I could not locate a copy of the complaint online, but “double dibbed” should be fair game, even if it was descriptive.

First Amendment rights have their fullest and most urgent application precisely to the conduct of campaigns for political office.

Brown v. Hartlage, 456 U.S. 45, 53 (1982).

Lawyers need to be able to express themselves during campaigns in order to elucidate issues. They need to be able to tell the public why they would be a better choice than the current judge in office.

The agreed-upon language states the Judge was “flippant” during the Commission’s interview, did not treat it seriously. The flippancy apparently had to do with the Judge saying “there’s no shame to my game.”

Accoring to the order, that “brought shame and obloquy to the judiciary.”

I had to look up “obloquy.” Merriam Webster’s online dictionary defined it as, “a strongly condemnatory utterance.” I agree judges should treat official interviews seriously. But it’s hard to envision how “no shame to my game” was strong condemnatory language against the profession.

Further, the canon implictes judicial speech. Under that language, isn’t there a risk that judges who say we need “big change” in the courts, or “reform” be subject to sanction?

A number of judicial canons were cited as basis for the McCree censure.

We also adopt the Commission’s conclusion that these facts demonstrate, by a preponderance of the evidence, that respondent breached the standards of judicial conduct in the following ways:

(a) Misconduct in office, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30, and MCR 9.205;

(b) Failure to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to the Code of Judicial Conduct, Canon 1;

(c) Irresponsible or improper conduct which erodes public confidence in the judiciary, in violation of the Code of Judicial Conduct, Canon 2A;

(d) Conduct involving impropriety and the appearance of impropriety, in violation of the Code of Judicial Conduct, Canon 2A;

(e) A failure to willingly and freely accept restrictions on conduct, present due to constant public scrutiny, that might be viewed as burdensome on the ordinary citizen, Canon 2A;

(f) Conduct which exposes the legal profession or the courts to obloquy, contempt, censure, or reproach, in violation of MCR 9.104(2); and

(g) A lack of personal responsibility for his own behavior, contrary to MCR 9.205(A).

This case is both interesting and disturbing. Michigan’s canon that requires judges to “willingly and freely accept restrictions on conduct” is an interesting one. In Minnesota, judicial canons were amended in December 2008 and continuing on the bench after that date was deemed acceptance of the restrictions.

Obviously, Judge McCree agreed to the language in the settlement agreement. But I am still troubled by vague rules that require “high standards of conduct so that the integrity and independence of the judiciary may be preserved….” How can someone conform their conduct when that language is so broad?

Although I am encouraged that the number of formal disciplinary cases nationwide are on the rise, I also want to note that I have noticed a lot of judges now being investigated, charged, or disciplined, are judges of color. It’s too soon to form a conclusion, but I am going to watch this. It does not help the overall “integrity” of the system if ethics rules are disproportionately enforced against judges of color.

If this is transcript from the case before the Judicial Tenure Commission, then I’d agree that there is an issue. This type of bullying (of criminal defendants and their attorneys) goes on in enough courtrooms that it’s good to know Michigan is dealing with the problem.

I love that the Commission is considering that the judge did not follow the law. If that doesn’t get enforced, what’s the point?

(I know that these comissions sometimes tell complainants they can’t address issues that should have been raised on appeal. That’s a form letter often sent out by our Minnesota Board on Judicial Standards. I think that’s a cop out. Many issues are both legal and ethical. And with appellate courts sustaining most cases these days, it’s nice to see an additional agency enforce the rule of law.)

The moral of this story is an easy one: judges, be nice to criminal defense attorneys…and follow the constitution. What could be simpler?

Here’s a link to an article about two new policy papers written to enhance transparency in government, and a more participatory government. They’s singing my song.

Feather O’Connor Houstoun described their presentation as follows,

Government is moving toward transparency in fits and starts, and no one seems able to point out key tools that will accelerate the process. Absent is a forum where we can systematically address thorny technical issues, like the impact of privacy laws and concerns about transparency advances….

Obstacles to increased transparency include, “a culture of secrecy, resistance by public officials or lack of financial and technical resources.” (Id.).

One of the papers (featured here) identifies 6 strategies for more open and participatory government.

These include:

(1) strategies focused on enhancing government expertise and transparency,

(2) educating citizens regarding the availability and utility of government information and e-government tools, and

(3) forging public-private-citizen partnerships in order to enhance open government solutions.

Judge Richard F. Cebull, a Montana federal judge who admitted to sending an email about President Obama that some called racist, will take senior status in 2013. (See story at KURL8.com here; Wikipedia here).

Cebul was appointed by George W. Bush, and became Chief Judge in Montana in 2008. (Id.).

It’s not clear whether the controvery over the one email had an impact on Cebul taking senior status.

It is clear that that case involved one email.

It is also clear that Cebul had the presence of mind to report himself to authorities when the email was exposed. (My prior post here).

I think the question for the public is – if this one email was in such bad taste – have other judges sent emails that deserve our scrutiny?

Should we, the public, be able to access emails sent by our public servants?

In Minnesota judges are elected. Should we be able to see what they are sending, as they are asking for our votes?